President Clinton wants to send 4,000 American soldiers on a NATO peacekeeping mission to Kosovo. If all goes as planned (though what goes as planned in the Balkans?), the troops will spend the next three to five years disarming ethnic Albanian guerillas, replacing Serbian policemen with ethnic Albanians, and generally restoring order to the Godforsaken Yugoslavian province. The mission is a superb idea, a noble effort to pacify the troubled region before war spills into the rest of Europe.
It's also illegal. The Clinton administration is "briefing" and "consulting" with Congress about the mission but will not seek congressional approval. The administration insists that it does not need such approval: "Ample constitutional precedent" (Bosnia, Somalia, Haiti) proves that the commander in chief can conduct such forceful operations without a congressional say-so. And Congress, it seems, agrees.
It is probably hopeless, and certainly unfashionable, to remind the president and Congress that they are wrong. Few passages in the Constitution have been more abused than Article 1, Section 8.11, which gives Congress sole power "to declare war [and] grant letters of marque and reprisal." Constitutional history is fuzzy on many matters, but on this it is pellucid: The framers intended Congress, and Congress alone, to decide whether and when to send troops into combat. (According to scholars, "letters of marque and reprisal" are, roughly speaking, the 18th century equivalent of our small-scale military actions.) The framers allowed that the president could authorize defense and immediate retaliation in the case of a surprise attack. Otherwise, the authority belonged to Congress. Our elected representatives were supposed to deliberate, slowly, on this most consequential of state actions. The framers feared, above all, that a vainglorious executive would, if unchecked, drag the country into foolish foreign entanglements.
This principle of congressional supremacy guided the United States through World War II. (Occasionally, Congress declared war before sending troops; mostly it didn't.) But Congress' military influence began to wane as presidents grabbed more and more power. The seminal event was the Korean War, which President Harry Truman waged with U.N. approval and virtual silence from Congress. The shift continued through Vietnam and the secret invasions of Cambodia and Laos. In 1973, Congress reasserted itself by passing the War Powers Resolution over Nixon's veto. Under the resolution (more commonly known as the "War Powers Act"), the president has 90 days to obtain congressional approval of a military action. If Congress does not vote aye, the troops must come home.
The War Powers Resolution has been a monument to congressional fecklessness and presidential bullying. Every president has called the law unconstitutional and proceeded as if it (and the Constitution) didn't exist. Ronald Reagan, the grand champion of executive power, ignored the war powers clause and resolution in Grenada, Lebanon, Libya, Central America, and the Persian Gulf. (Reagan's advisers, usually so obeisant to "original intent" when interpreting the Constitution, were more cavalier on the subject of war powers.) George Bush skirted congressional war powers in Panama and denied that they applied to the Iraq war. Clinton has ducked them in Haiti, Somalia, Bosnia, and Iraq. (When administration officials cite "ample constitutional precedent," it is this "ample," but hardly constitutional, record, to which they are referring.) Presidents have euphemized away the seizure of congressional authority, minimizing their uses of force as "surgical strikes," "police actions," or "immediate reprisals." They have cited the pressures of the Cold War: At a time when any regional flare-up might provoke a nuclear confrontation, they argued, America needed a single, firm hand on the tiller. As Reagan said, "You can't have 535 secretaries of state."
Congress grumbled but didn't stop the erosion of its power. Whenever a president dispatched troops or missiles, congressional Democrats and a few Republicans would pipe up that the president was ignoring the War Powers Resolution. The president would argue it didn't apply. Congress would gripe a bit more, and by that time the troops would be on their way home. The resolution has become a convenient cover: It allows Congress to complain that the president is breaking the law without forcing Congress to take any real responsibility. If the operation goes awry, Congress can load all the blame on the president. If the operation goes well, the president takes all the credit anyway. "There's nothing in it for Congress," says Eric Alterman, author of Who Speaks for America?: Why Democracy Matters in Foreign Policy. "No one is going to make his career as a great foreign policy senator." The political adage states that politics stops at the water's edge. In fact, politics doesn't even start. Congress just isn't interested enough.
T his time around, Congress isn't even bothering to invoke the war powers clause or resolution. Both the rescue of Kosovo and the ongoing bombardment of Iraq are undoubtedly military operations as contemplated by the Constitution. Both expose U.S. troops to hostilities, and neither is an immediate retaliation for an attack on the United States. The Iraq bombing has been going on for two months, and the administration has not signaled any willingness to abide by the War Powers Resolution. The Kosovo engagement is scheduled for three years, but the administration has no intention of ever putting it to congressional vote. (Congress has never held a War Powers Resolution vote on the Bosnia mission, which began in 1995.) Even so, Congress, perhaps exhausted by impeachment or simply supportive of the operations, has been notably silent. "There is war powers fatigue," says Brookings Institution scholar Richard Haass.
The fact remains that the congressional surrender of war powers is anti-democratic and anti-republican. The most important duty of the state--the power to wage war--is now held by one man and his unelected advisers. Members of Congress, who were elected to deliberate and make these nasty decisions, have abdicated the duty the framers intended them to have. Their abdication deprives the rest of the nation of the chance to hear and participate in debate. It is no coincidence that the Iraq war, the only recent military engagement preceded by a vigorous national debate, was also an operation that Americans supported wholeheartedly. Do Americans even know where Kosovo is?
Congressional Democrats and Republicans have cooperated in abandoning war powers. The indifference of congressional Republicans is not surprising: Since the days of Reagan, they have generally endorsed the executive's war-making authority. The Democrats' indifference is more demoralizing. Democrats, after all, endorsed Congress' war powers when Reagan and Bush were sending in the Marines. Why don't they now? The president, too, seems hypocritical. After all, he fervently participated in the anti-Vietnam movement, and the War Powers Resolution was a great triumph of that movement. Now that he owns the executive authority he once feared in Nixon, Clinton has cavalierly dismissed constraints on his power.
Congressional war powers are not an entirely lost cause. A few stubborn legislators are still shouting about it. Sen. Joe Biden, D-Del., wants to amend the War Powers Resolution to give it more teeth. He will hold hearings if he can get Senate Foreign Relations Committee Chairman Jesse Helms, R-N.C., to agree to them. Rep. Tom Campbell, R-Calif., an international law professor, has championed congressional war powers for years. Last year he tried and failed to invoke the War Powers Resolution for the Bosnia mission. Now he and Rep. Barney Frank, D-Mass., are circulating a letter to colleagues that they will send to the president next week. The letter insists that "The Constitution compels you to obtain authority from Congress before taking military action against Yugoslavia." So far, Campbell and Frank have enlisted only 34 co-signers, and the administration shows no signs of paying attention.
You can see why the administration wouldn't listen. A congressional debate and vote on whether we should intervene in Kosovo could be a fiasco. The intervention could be stopped by a block of isolationist senators and House members. Our failure to intervene might well cause the war to escalate and spread. But the absence of such a debate and vote may be worse. The Constitution is most necessary when it is most inconvenient.